(concurring in part, and dissenting in part).
I readily concur in that part of this decision which directs defendant and his attorney to the provisions of 22 O.S.1971, § 994, concerning consideration for a suspended sentence; but I respectfully dissent to the results reached by the majority decision. I believe the conviction should be reversed and remanded for a new trial.
The majority decision cites Igo v. State, supra, to support the trial judge’s action in cutting off defendant’s cross-examination of the principal witness and states, the extent of cross-examination “rests in the sound discretion of the trial court, and it is only in cases of clear abuse of such discretion, resulting in manifest prejudice to the accused, that this court will cause a rever*1309sal of the case.” Ironically, in the Igo case this Court said in the dictum of the decision, prior to stating the rule, “The court permitted the prosecution possibly too much latitude, even though the procedure by defense counsel may have enticed the questioning by the prosecution.” 267 P.2d at page 1096. In the instant case, however, there was no enticement on defendant’s part. Instead, the prosecution was attempting to correct witness Sandra Goodman’s testimony concerning her identification of the coat defendant was wearing. The witness had testified on direct examination that the coat defendant was wearing on the night he was arrested was the same coat he was wearing when he allegedly robbed the grocery store; but, when defendant offered the coat into evidence, there was no hood on the coat. Consequently, on re-direct, the prosecution went into the identification training the witness received when she started working for the store some two months earlier. When defense counsel requested to enter recross examination of the witness, the trial court refused defendant’s request and excused the witness. Defendant preserved his' exceptions to the court’s ruling. I believe such action was an abuse of judicial discretion insofar as this witness was the principal witness, and she was one of the positive identifying witnesses.
In Hopkins v. State, 9 Okl.Cr. 104, 130 P. 1101 (1913), one of the leading State cases on the subject of cross-examination, this Court said:
“As to what is the proper practice on cross-examination of witnesses the general rule is that the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.
“When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the trial court will not be reviewed on appeal.” (Emphasis added)
In the instant case the general rule was not liberally construed; and, who is now to say whether or not defendant could have sufficiently challenged the witness’ identification, because he was not permitted to make that attempt. The witness testified that she had worked for the Safeway Stores about two months and nothing in the record reflects that she made any observations about the robber, except for his coat, hood and mustache' — -in other words, his general appearance. There is no doubt in this writer’s mind, but that the trial judge did abuse his discretion when he denied defendant the right to further cross-examination of Sandra Goodman, who was the principal witness against defendant. Considering the facts of this case, when this Court says, as the majority opinion recites, “Although we believe the better practice would have been to allow defense attorney to re-cross examine this witness, we do not believe the trial court’s denial of re-cross examination of this witness was an abuse of discretion. . . .,” this Court is protecting the trial judge’s ruling at defendant’s expense. Certainly defendant could have called the witness as his own witness, but direct examination is not nearly as effective as cross-examination in such instances. This is the first time this defendant has been charged with any crime, and now he faces ten years imprisonment. No doubt should remain concerning either his guilt, or whether or not he received a fair trial. If the trial judge committed error, which I believe he did, this Court should recognize it and grant defendant a new trial.
*1310As I view the record, the identification of defendant was not as clear-cut as the majority decision leaves one to believe. Notwithstanding- the fact that the extra-judicial identification statements of the two witnesses are now considered to be admissible, on March 17th, when defendant was arrested, witness Sandra Goodman talked Thomas Kinnan into believing defendant was the man who robbed the store; and then when Goodman’s testimony became suspect, defense counsel was denied further cross-examination. The third identifying witness saw the two robbers only briefly, and some nine months later identified defendant as one of the robbers. But Mr. Lewis Culver, who observed the robber longer than any other witness, and who was the customer in whose back the robber held a pistol, when asked if he saw the robber in the courtroom testified, “Well, I see someone with the same general build; that’s all I can say.” He refused to identify defendant as the man who robbed the store.
Defendant complains also that the trial judge interposed statements when questions were asked, and made observations from the bench which were prejudicial to defendant. I believe defendant’s contentions contain merit. The prosecutor was questioning Nancy Bricky, the other cashier who was robbed by yet another man, at the same time Sandra Goodman was allegedly being robbed by defendant. The prosecutor asked, “And will you describe for us, please, what happened?” Miss Bricky answered, “Well, as I said, this man walked up to the cashier’s booth; he said, ‘Sack up all the money.’ ” The prosecutor then said, “Just tell us what happened.” Defense counsel objected saying, “Now, I’ll object again; this is hearsay.” Instead of ruling on defendant’s objection, the court stated, “Well, you were ordered to sack up the paper; that’s the way to get around it —the money, I mean money.” Defense counsel saved his exception.
On numerous other occasions when a question was asked of a witness, the court would interpose “If you know.” On another occasion when defense counsel was interrogating witness Thomas Kinnan and asked what defendant was doing when the witness saw him on the night of March 17th, the court interposed, “If you know what he was doing.” At one point, when ruling on the prosecutor’s objection to defendant’s evidence, the court stated, “Well, overruled for whatever it’s worth; I don’t know.”
Such comments are unnecessary and in this case could have had no other effect than to prejudice defendant in the eyes of the jury. “The Constitution provides for a fair and impartial trial. It can be made an unfair and a partial trial by the trial judge in his use of facial gestures or tone of voice, expressions, showing censure or dis-pargement of counsel or a witness or unnecessary emphasis in his rulings or other remarks.” 1 “The influence of the trial judge on the verdict of the jury is so great that no action nor word of the trial judge should be allowed to indicate the judge’s conclusion of guilt or inno-cense.” 2
After carefully reviewing the record of defendant’s trial, I do not accept the citation of Sandefur v. State, supra, as being sufficient to cast off defendant’s fifth proposition. The State was allowed to introduce various items of irrelevant, incompetent and immaterial evidence and testimony to defendant’s prejudice. To me the cumulative effect of that evidence and testimony becomes fundamental and requires no specific citation of authority.
The State was permitted to inquire of defendant concerning his brothers, how many he had, where they lived, and were they in Tulsa on January 22, 1970, leaving the implication that one of them might have been the other robber. On cross-examination of defendant, the State was per*1311mitted to inquire concerning a “B-B” pellet gun, and introduced one into evidence without showing that it had any bearing on defendant’s trial whatsoever. There was no showing that defendant possessed a pistol, and if his apartment was searched, none was found. Defendant denied that he had ever owned a hand-gun of any sort, but did admit having shot such a pellet gun, which belonged to his nephew in Durant, Oklahoma. The only effect such display and interrogation could have had on the jury was a prejudicial effect. The cross-examination of defendant’s wife was allowed to go beyond proper limits, as was the rebuttal testimony of Officer Bill Putnam.
I concur that defense counsel should apply to the trial court for suspended sentence under the provisions of 22 O.S.1971, § 994, since the majority of this Court sees fit to affirm this conviction; and I strongly urge the judge who considers such application to suspend defendant’s sentence in its entirety. But I respectfully dissent to this Court’s action in affirming defendant’s conviction, because as I view the record, defendant did not receive that type trial contemplated by due process of law.
. Conner, Leslie L., The Trial Judge, His Facial Expressions, Gestures and General Demeanor, OBAJ, vol. 40, p. 961, 1969.
. Id., p. 965, citing: Veal v. State, 196 Tenn. 443, 268 S.W.2d 345 (1954).